STF: Virtual plenary reduces case queue, but is criticized – 07/08/2023 – Power

With accelerated implementation during the pandemic, virtual trials reached almost all collegiate decisions and significantly changed the dynamics of the STF (Federal Supreme Court).

If, on the one hand, they helped to reduce the backlog of cases in the court, they have been the target of criticism for the lower degree of debate among ministers and for the lower publicity of the decisions.

The reduction in the spectacle of trials and the dynamics that deconcentrate power among court ministers are cited by enthusiasts of the virtual plenary.

Online trials at the STF began even before the pandemic accelerated the process, starting in 2020.

In 2007, the court instituted the possibility of virtual analysis to decide on the existence of general repercussions in certain actions —that is, if it is possible that the decision for the case under analysis serves as a reference for others on the same topic.

Three years later, the use of the virtual plenary was released also for the merit of these processes of general repercussion.

In 2016, the online judgment of internal grievances and embargoes of
declaration.

In 2019, 81.9% of collegiate decisions were already given in a virtual environment.

With the emergence of the Covid pandemic, the modality took a leap, as the Supreme Court began to allow any type of action to be decided in the virtual plenary, which included those with the greatest social impact.

As a result, the proportion of collegiate decisions handed down online reached 99.5% at the beginning of July this year.

The procedural collection, that is, the number of actions pending before the Supreme Court, fell from 53.9 thousand in 2015, before the implementation of the electronic plenary, to 22.3 thousand now.

Judgments in the virtual plenary are asynchronous, that is, they are not an online meeting attended by all ministers at the same time.

The dynamic is different. After the rapporteur releases the case, lawyers and prosecutors can send files with their oral support within 48 hours before the start of the virtual trial.

The rapporteur publishes his report and vote in the system, and the other judges have six working days to enter their votes in the system.

Any minister can ask for a highlight so that the case is taken to the physical plenary. This usually occurs in cases where it is understood that there is a greater need for discussion —for example, the time frame for the demarcation of indigenous lands.

The data show, however, that processes that go to the face-to-face have become the exception of the exception – this year, only 147 of 12,965.

Processes of broad social interest remained in the virtual environment, such as the constitutionality of the decrees that expanded access to firearms, the receipt of complaints against those accused of the January 8 coup attacks and the nursing floor for professionals in the private sector.

The ministers’ manifestations in the virtual plenary are open to the public, as long as the interested party enters the process and reads the votes one by one.

This is a non-trivial paradigm shift in a court that, since 2002, has had its plenary sessions broadcast live on TV Justiça —which was a peculiarity among democracies, as highlighted in a recent article by Union lawyer Raphael Monteiro de Souza, PhD student in Political Science at UnB (University of Brasilia).

This uniqueness allowed citizens not only to follow fights and curses between ministers, but also to discuss and confront arguments.

The absence of real-time debate is seen by some as a lack of transparency and, by others, as one less incentive to make the trials more spectacular, that is, it would preserve ministers from deciding according to the position they consider to be the most popular.

Priscila Seifert, also a lawyer at União, is a postdoctoral student in law at UFF (Fluminense Federal University), and is on the first team.

She considers that there are positive aspects in the virtual plenary, such as greater fluidity in the processing of processes, but understands that the lack of interaction between ministers can impoverish decisions.

This is because, in the asynchronous plenary, there is no clash of ideas and even converging votes can take place on completely opposite grounds, without it being clear to society why a particular position prevailed.

“There is no discussion of theses, there is an accounting of votes”, he says.

Professor of constitutional law at UnB and UFPR (Federal University of Paraná), Miguel Godoy believes that the virtual plenary session is necessary and has great potential, but criticizes the way it has been used.

A particular concern of his is with the virtual lists of judgments, in which decisions are handed down for a series of cases without any discussion.

“The court seems to be more and more accepting of becoming a McDonald’s Court,” he says. “A court that produces a lot, quickly, and is proud of it. The quality of the sandwich, we know, is not good, and, taken as an everyday occurrence, it is harmful.”

Godoy suggests the implementation of tools that could increase the space for debate and dissemination of theses under discussion online.

Among them, would be the creation of space in the virtual plenary for the presentation of questions or counter-arguments; a specific window that gathers and lists consensual arguments and separates minority arguments; and the creation of provisional polls to facilitate the definition of what is consensual, majority or minority, for example.

A doctoral student at USP and researcher at the Supreme Court at FGV Direito SP, Ana Laura Pereira Barbosa sees some of the criticisms of the virtual plenary as legitimate, but says that there are positive aspects beyond agility.

She cites among them the greater ease of submitting a monocratic decision to the online collegiate, which becomes a disincentive to the merely individual action of ministers, which was previously justified by the need for speed.

Another positive side, he says, is valuing the time of the physical plenary, which continues to be used for cases in which ministers believe there is a need for debate in real time.

She also points out that the physical plenary also had limitations in deliberation. In most cases, each minister arrives with their votes written and, many times, the face-to-face session ends up being a mere reading of them.

In this sense, another advantage that she points out in the virtual plenary is that the rapporteur’s vote is always made available in advance, which does not always happen offline, and this allows other ministers to build their position based on an already known position and prepare for opposing arguments.

Another change that some researchers see as positive is the deconcentration of the Supreme President’s agenda power. This is because, in the physical plenary, it is he who determines the inclusion of a certain process in the agenda.

In virtual, this is done in practice by the case rapporteur, when he releases the process.

In a report on the virtual plenary released last year, the STF points to indications that the system has become a “space for argumentative densification”, as evidenced by the increase in the proportion of judgments with at least one dissenting vote by the rapporteur.

But the existence of dissident positions does not mean that they were confronted, says Professor Godoy, reinforcing the need for improvements. “The virtual plenary could deliver more than many decisions at the same time,” he says.

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HOW THE VIRTUAL PLENARY WORKS

inclusion in the agenda
Rapporteur submits process to virtual trial

Publication of the agenda
Lists of cases released for trial are published on the STF website and in the electronic Justice Journal

Oral arguments
After the publication of the agenda and up to 48 hours before the start of the trial, lawyers, prosecutors and
other qualified persons may submit an oral support electronically. Archives are made available on the spot to ministers’ offices

Rapporteur’s position
Rapporteur inserts his report and vote in the virtual system

vote
Other ministers have six business days to vote. They may accompany the rapporteur, with or without exception; diverge; and monitor divergence, with or without exception. Until the end of the session, they can change their vote. Archives are made available to the public in real time

Interventions
Lawyers, attorneys and other qualified persons may present statements throughout the trial

Go to plenary physicist
Any minister can request the migration of the process to the physical plenary

End
If there is no request for migration to the physical plenary, and if there is a quorum, the result of the virtual plenary is computed at 23:59 on the day scheduled for the closing of the session